Case: 17-35105, 02/06/2017, ID: 10302892, DktEntry: 28-1, Page 1 of 32 NO. 17-35105 UNITED STATES COURT OF APPEALS FOR THE NINTH CIRCUIT STATES OF WASHINGTON AND MINNESOTA, Plaintiffs-Appellees, v. DONALD TRUMP, President of the United States, et al., Defendants-Appellants. ON APPEAL FROM THE UNITED STATES DISTRICT COURT WESTERN DISTRICT OF WASHINGTON AT SEATTLE No. 2:17-cv-00141 The Honorable JAMES L. ROBART United States District Court Judge STATES’ RESPONSE TO EMERGENCY MOTION UNDER CIRCUIT RULE 27-3 FOR ADMINISTRATIVE STAY AND MOTION FOR STAY PENDING APPEAL ROBERT W. FERGUSON, WSBA 26004 MARSHA CHIEN WSBA 47020 Attorney General PATRICIO A. MARQUEZ WSBA 47693 NOAH G. PURCELL, WSBA 43492 Assistant Attorneys General Solicitor General Washington State ANNE E. EGELER, WSBA 20258 Office of the Attorney General Deputy Solicitor General 800 Fifth Avenue, Suite 2000 Seattle, WA 98104 COLLEEN M. MELODY, WSBA 42275 Civil Rights Unit Chief (206) 464-7744 Case: 17-35105, 02/06/2017, ID: 10302892, DktEntry: 28-1, Page 2 of 32 LORI SWANSON Attorney General of Minnesota ALAN I. GILBERT, MN #0034678 Solicitor General JACOB CAMPION, MN #0391274 Assistant Attorney General Office of the Attorney General 445 Minnesota Street, Suite 1100 St. Paul, MN 55101 (651) 757-1450 Case: 17-35105, 02/06/2017, ID: 10302892, DktEntry: 28-1, Page 3 of 32 TABLE OF CONTENTS I. INTRODUCTION ................................................................................1 II. BACKGROUND ..................................................................................1 III. ARGUMENT .......................................................................................5 A. Defendants’ Appeal is Procedurally Improper .....................................5 B. If the Court Considers the Appeal, Defendants’ Burden is High and the Standard of Review Deferential ..............................................6 C. Defendants Cannot Show Irreparable Harm from the TRO When it Simply Reinstates the Status Quo....................................................7 D. Defendants Are Unlikely to Succeed on Appeal Because the District Court Acted Within its Discretion ..........................................8 1. Courts can review the legality of executive action and the executive’s true motives..............................................................9 2. The States have standing ........................................................... 11 a. Proprietary standing ............................................................ 11 b. Parens Patriae standing ...................................................... 13 3. The States’ claims have merit .................................................... 14 a. Defendants are unlikely to prevail against the States’ Due Process claim .............................................................. 14 b. Defendants are unlikely to prevail against the States’ Establishment Clause claim ................................................. 18 c. Defendants are unlikely to prevail against the States’ Equal Protection claim ........................................................ 20 i Case: 17-35105, 02/06/2017, ID: 10302892, DktEntry: 28-1, Page 4 of 32 d. Defendants are unlikely to prevail against the States’ INA claim ......................................................................... 21 4. A nationwide TRO was appropriate ............................................ 23 E. A Stay Would Harm the States and the Public Interest........................ 24 IV. CONCLUSION .................................................................................. 25 ii Case: 17-35105, 02/06/2017, ID: 10302892, DktEntry: 28-1, Page 5 of 32 I. INTRODUCTION On January 27, President Trump unleashed chaos by signing the Executive Order at issue here. Within 72 hours, the State of Washington (quickly joined by Minnesota) had filed a complaint and motion for temporary restraining order (TRO), detailing the extraordinary and irreparable harms the Order was inflicting on our States and our people. After hearing from Defendants, the district court entered the TRO, finding that the States had met their burden to obtain that relief. The effects of the TRO were positive and immediate, as immigration procedures began to return to normal, families reunited, stranded students and faculty began returning to our States, and longtime State residents were able to return to their homes. Defendants now ask this Court to unleash chaos again by staying the district court order. The Court should decline. Defendants’ appeal is improper, their burden to obtain a stay is high and unmet, and their arguments fail. II. BACKGROUND Donald Trump campaigned on the promise to impose “a total and complete shutdown of Muslims entering the United States.” ECF 18 ¶ 42-43.1 He repeatedly defended and reiterated this promise. ECF 18 ¶¶ 44-46. 1 All ECF citations are to the district court docket numbers. 1 Case: 17-35105, 02/06/2017, ID: 10302892, DktEntry: 28-1, Page 6 of 32 Shortly after taking office, President Trump signed an Executive Order entitled “Protecting the Nation from Foreign Terrorist Entry into the United States” (“the Order”). ECF 18 ¶ 49. The Order radically changes U.S. immigration policy, imposing a 120-day moratorium on the refugee resettlement program; indefinitely suspending entry of Syrian refugees; and suspending for 90 days entry of anyone from seven majority-Muslim countries: Iran, Iraq, Libya, Somalia, Sudan, Syria, and Yemen. ECF 18 ¶¶ 49-52. President Trump subsequently stated his intent to prioritize Christians in the Middle East for admission as refugees. ECF 18 ¶ 53. The Order had immediate and significant effects in Washington. Over 7,000 noncitizen immigrants from the affected countries reside in Washington. ECF 18 ¶ 11; ECF 4 ¶ 7, Ex. A. Those who were abroad were blocked from returning home. ECF 33 ¶¶ 7-8. Husbands were separated from wives, brothers from sisters, and parents from their children. ECF 18 ¶¶ 21-23; ECF 33 ¶ 5, 9. Some who had waited decades to see family members had that reunion taken away without warning or reason. ECF 18 ¶ 21; see also e.g., ECF 8 ¶¶ 11-13; ECF 33 ¶¶ 5-9; ECF 43 ¶¶ 5-9. Washington’s economy was also immediately impacted. Washington receives substantial sales tax revenue every year from travelers from the 2 Case: 17-35105, 02/06/2017, ID: 10302892, DktEntry: 28-1, Page 7 of 32 countries covered by the Order’s travel ban, and immediately began losing some of that revenue. See ECF 17 ¶¶ 3-11. Washington-based travel company Expedia began incurring costs assisting its customers who were suddenly banned from travel to the United States. ECF 7 ¶¶ 12-14, 20. Washington companies Amazon, Expedia, and Microsoft depend on skilled immigrants, and the Order diminished their ability to recruit. ECF 18 ¶¶ 12-17; ECF 6 ¶¶ 3-4, 11; ECF 7 ¶¶ 7, 9, 21. As a result of the order, many employees were unable to travel internationally, impairing business operations. ECF 7 ¶¶ 15-20; ECF 6 ¶¶ 7-11; ECF 18 ¶¶ 14-15. The Order also caused immediate harm to Washington’s public universities, which are state agencies. Hundreds of their faculty, staff, and students are from the affected countries. ECF 18 ¶ 28; ECF 9 ¶ 5; ECF 5 ¶ 5; ECF 17-3 ¶¶ 4, 6; ECF 17-2 ¶ 10; ECF 17-4 ¶ 5. The Order instantly stranded some faculty and students overseas, prevented others from traveling for research and scholarship, and harmed the universities’ missions. ECF 9 ¶¶ 6-8; ECF 5 ¶¶ 6-9. ECF 17-4 ¶¶ 6-7. Due to these immediate and serious harms, Washington filed a complaint and motion for TRO. ECF 3. Minnesota soon joined, alleging similar harms. ECF 18 ¶¶ 30-36. 3 Case: 17-35105, 02/06/2017, ID: 10302892, DktEntry: 28-1, Page 8 of 32 On February 3, the district court held a hearing on the States’ motion. The Court granted the motion and entered a TRO barring Defendants from enforcing several sections of the Order. ECF 52. The Court stated its intent to promptly hold a hearing on the States’ forthcoming motion for preliminary injunction and ordered the parties to propose a briefing schedule by the next business day. ECF 52 at 6. The State proposed a briefing schedule to Defendants. Decl. of N. Purcell In Support of State of Washington’s Response to Emergency Motion for Stay Pending Appeal, Ex. K. Following entry of the TRO, the State Department declared that it was restoring visas that had been revoked under the Executive Order. Id. Exs. A, B. It also stated that refugees could begin arriving as soon as Monday. Id. Exs. C, D. The Department of Homeland Security started processing travelers with visas as normal and resumed standard inspection procedures. Id. Exs. E, B, F. Customs and Border Protection directed that nationals of the seven affected countries and all refugees presenting a valid visa or green card be permitted to travel to the United States. Id. Ex. G. Airlines announced that they will allow travelers from the seven nations to board flights. Id. Exs. G, H, I, J, B, D. On February 4, travelers from the previously banned countries began arriving at 4 Case: 17-35105, 02/06/2017, ID: 10302892, DktEntry: 28-1, Page 9 of 32 U.S. airports. Id. Ex. B. More travelers are expected in the coming days. Id. Ex. B. On February 4, Defendants filed a notice of appeal and motion for stay pending appeal. III. ARGUMENT The Court should deny Defendants’ Motion to Stay as procedurally improper and wrong on the merits. A. Defendants’ Appeal is Procedurally Improper Defendants acknowledge that TROs are generally non-appealable. Motion at 8. But they claim a right to appeal here